In February 2011, at the urging of President Obama, the Justice Department announced it will no longer defend the Defense of Marriage Act (D.O.M.A.). According to Attorney General Eric Holder, the rationale behind the decision was that the traditional definition of marriage could not be defended given a history of anti-homosexual discrimination. Holder also stated that classifications based on sexual orientation should be subject to heightened scrutiny.

As a result of the Executive Branch’s action, DOMA’s constitutionality was recently defended by the Bi-partisan Legal Advisory Group (BLAG) in Windsor v. U.S., 2012 WL 2019716. BLAG was not successful. On June 6th, the U.S. Southern District of New York held DOMA violated equal protection under rational basis review. Windsor is the latest in a string of decisions putting DOMA on life support.

On July 8, 2010, U.S. District Court of Massachusetts Judge Joseph Tauro held Section 3 of the DOMA unconstitutional. In Gill v. Office of Personnel Management (699 F. Supp. 2d 374), it was held that section 3 violates the Equal Protection clause of the 5th Amendment. Further, in the case of Commonwealth of Massachusetts v. Health and Human Services (689 F. Supp. 2d 234), Tauro ruled that section 3 also violates the 10th Amendment under which states derive the authority to regulate marriage.

More recently, the United States Court of Appeals, First Circuit, found that denying federal benefits to married same-sex couples was unconstitutional (2012 WL 1948017). Plaintiffs filed suit after being prevented from filing joint federal tax returns or collecting Social Security survivor benefits. “Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest,” posited Judge Michael Boudin.

RESEARCH REFERENCES:

Holder’s statements can be found in the Department of Justice documents collection on Westlaw. Run a ‘find’ for 2/23/11 DOJDOCS. There are 42 documents. Find, Statement of the Attorney General on Litigation Involving the Defense of Marriage Act and Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act.

There’s not a great deal to be found on BLAG. A search on WestlawNext (simply, adv: “bipartisan legal advisory group”) across all content and in all jurisdiction delivers 159 results, half of which are briefs and filings.

Section 3 of D.O.M.A., codified at 1 USCA 7, concerns the definition of “marriage” and “spouse.”